State v. Hamic

• Citation: 129 P.3d 114
• Decision Date: 03 March 2006
• Docket Number: No. 94,881.,94,881.
• Parties: STATE of Kansas, Appellant, v. Judith A. HAMIC, Appellee.
• Court: Court of Appeals of Kansas

129 P.3d 114

STATE of Kansas, Appellant, v. Judith A. HAMIC, Appellee.

No. 94,881.

Court of Appeals of Kansas.

March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Ernest H. Richardson, county attorney, and Phill Kline, attorney general, for appellant.

Kathleen W. Rein, of Stull & Rein, L.L.C., of Pratt, for appellee.

Before CAPLINGER, P.J., JOHNSON, J., and KNUDSON, S.J.

JOHNSON, J.

The State takes this interlocutory appeal from the prosecution of the drug case against Judith A. Hamic (Judith), specifically challenging the suppression of evidence. The district court found that the initial vehicle stop was unlawful. Finding that the totality of the circumstances provided the arresting officer with legally sufficient justification to effect an investigatory detention of the vehicle, we reverse and remand.

On January 20, 2005, while on early evening patrol in the City of Pratt, Officer Wayne Cline passed a green Jeep Cherokee, which he believed might belong to Jena Hamic-Deutsch. Hamic-Deutsch had been stopped twice in the preceding 2 months while driving a green Jeep Cherokee, once by Officer Cline on December 19, 2004, and once by fellow officer, Robert Walker, on November 17, 2004. On both occasions, Hamic-Deutsch was cited for driving on a suspended driver's license and having no current proof of insurance. During Officer Cline's previous stop, Hamic-Deutsch displayed an insurance card indicating an expiration date in October 2004. Officer Cline also knew that Hamic-Deutsch was wanted on an active arrest warrant for probation violation issued out of municipal court.

Officer Cline followed the Jeep and checked its license tag through dispatch, confirming that the vehicle was registered to Hamic-Deutsch and her husband or ex-husband, Michael Deutsch. Although the officer could not ascertain who was operating the Jeep, he then effected a traffic stop. He discovered that the vehicle was being driven by Judith Hamic, the mother of Hamic-Deutsch, and that Hamic-Deutsch was a passenger in the vehicle. Officer Cline was aware that Judith did not have a valid driver's license, and he detected a strong odor of alcohol emanating from the vehicle. Further investigation, which is not relevant to this opinion, resulted in the arrest of Hamic-Deutsch on the outstanding warrant and the arrest of Judith on charges of possession of marijuana, possession of drug paraphernalia, obstruction of legal process, and no proof of insurance. Subsequently, Hamic-Deutsch was also charged with having possessed the drugs and paraphernalia.

Hamic-Deutsch's motion to suppress the evidence obtained as a result of the traffic stop was granted by a magistrate. On appeal by the State, the district court conducted a de novo evidentiary hearing on the suppression motion. Therefore, in this case, the parties stipulated that Judith's suppression motion would be submitted to the district court upon the transcript of Hamic-Deutsch's suppression hearing, upon Officer Cline's affidavit describing the circumstances leading to Judith's stop and eventual arrest, and upon a copy of Hamic-Deutsch's outstanding arrest warrant.

In its memorandum decision, the district court found that "Officer Cline made a traffic stop without having observed a traffic violation or having other public service or safety grounds for the stop." The court opined that "[t]he fact that the officer knew the vehicle did not have insurance in November and December of 2004 does not amount to reasonable suspicion that the vehicle did not have insurance on January 20, 2005." Therefore, the court found that "the lack of reasonable suspicion before the stop controls under the stipulated facts before the Court" and granted the suppression motion.

On appeal, the State presents two issues, the gist of which we perceive to be that Officer Cline had reasonable suspicion that the crimes of driving while suspended and operating a vehicle without proof of insurance were being committed in the Jeep, and that, separately, the outstanding warrant for Hamic-Deutsch's arrest justified an investigatory stop of the vehicle owned by the fugitive.

STANDARD OF REVIEW

As noted, the parties stipulated to the documents upon which the district court was to decide the suppression motion, and we are unable to perceive any material dispute as to the relevant facts contained within those documents. Therefore, our review of the suppression order is a question of law subject to unlimited review. See State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).

LEGAL PRINCIPLES

"The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures." Ramirez, 278 Kan. at 404, 100 P.3d 94. The stopping of a moving vehicle by law enforcement is always considered a seizure. City of Norton v. Stewart, 31 Kan.App.2d 645, 647, 70 P.3d 707 (2003).

However, our courts consider a moving vehicle seizure to be an investigatory detention, as originally defined by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Kansas has codified the parameters of a permissible Terry stop in K.S.A. 22-2402(1), which provides:

"Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand... the name [and] address of such suspect and an explanation of such suspect's actions."

To lawfully stop a moving vehicle under Terry and K.S.A. 22-2402(1), a law enforcement officer must "`have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.'" State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998) (quoting State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 [1985]). "Something more than an unparticularized suspicion or hunch must be articulated. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)." DeMarco, 263 Kan. at 735, 952 P.2d 1276. However, reasonable suspicion is something less than the probable cause required for an arrest. State v. Slater, 267 Kan. 694, 697, 986 P.2d 1038 (1999) (quoting Alabama v. White, 496 U.S. 325, 330, 110 L.Ed.2d 301, 110 S.Ct. 2412 [1990]) ("`[r]easonable suspicion is a less demanding standard than probable cause'").

Both reasonable suspicion and probable cause are dependent upon the "`content of information possessed by police and its degree of reliability,'" and "`[b]oth factors—quantity and quality—are considered in the "totality of circumstances,"'" i.e., one must evaluate the whole picture. Slater, 267 Kan. at 697, 986 P.2d 1038 (quoting Alabama, 496 U.S. at 330, 110 S.Ct. 2412). Our Supreme Court has cautioned against "evaluating each suspicious factor in isolation and asking whether there was an innocent explanation for the activity." Ramirez, 278 Kan. at 406-07, 100 P.3d 94.

Thus, determining where a case fits onto the continuum from unparticularized hunch through reasonable suspicion to probable cause appears to involve more art than science. The analysis is not amenable to an easily applied mechanical test. Cf. State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005) (adopting a mechanical elements test for multiplicity without regard to the factual scenario of the particular case in order to achieve ease of application and certainty). As stated by the United States Supreme Court, cited with approval in Ramirez, 278 Kan. at 407, 100 P.3d 94:

"`[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.' ...

"The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Illinois v Gates, 462 U.S. 213, 231, 76 L.Ed.2d 527, 103 S.Ct. 2317 [1983]).

Obviously, the same fluidity and imprecise quantification of percentages applies to the reasonable suspicion standard, as a lesser degree of probable cause. "Where one or two factors may cause a reasonable suspicion, a combination of several factors may create probable cause." Ramirez, 278 Kan. at 407, 100 P.3d 94.

LAWFULNESS OF VEHICLE STOP

We decline the State's invitation to consider whether Officer Cline's knowledge of Hamic-Deutsch's outstanding arrest warrant provided a separate and independent lawful reason to effect an investigatory detention of the Jeep. The outstanding warrant for Hamic-Deutsch's arrest merely provided an additional reasonable suspicion that she "has committed" a crime, supplementing the officer's belief that she was then committing another crime. Therefore, we will look at the outstanding warrant factor as a sub-part of our totality of the circumstances evaluation.

Prior to effecting the stop on January 20, 2005, the content, or quantity, of Officer Cline's information was: (1) approximately 2 months previously, on November 17, 2004, Hamic-Deutsch was driving a green Jeep Cherokee; (2) at that time, her driver's license was suspended; (3) at that time, she had no proof that the vehicle was covered with liability insurance; (4) approximately a month later, on December 19, 2004, Hamic-Deutsch was driving a green Jeep Cherokee; (5) at that time, her driver's license was...